Address of President Frederick L. Taft, 
on the Work of the Constitu= 
tional Convention. 


Delivered at the Thirty-third Annual Meeting 
of the Ohio State Bar Association, 

July 9, 1912. 


The Fourth Constitutional Convention of Ohio has been held 
since the last session of this association. The convention adopted 
forty-one separate proposals, seeking to amend our present Con¬ 
stitution. Each is to be submitted separately to the electors of 
the state of Ohio at a special election to be held on the 3d day 
of September, 1912. 

No constitutional convention has ever been held since the 
organization of the Ohio State Bar Association, and as president 
,- 4 it seemed to me that there was no more important subject that 
could be discussed at this time than the work of the constitution¬ 
al convention. 

The first and original Constitution of Ohio was adopted in 
1802. Although it contained a provision for a constitutional 
convention to be held at any time whenever two-thirds of the 
General Assembly should think it necessary and a majority of the 
electors should vote therefor, none was held until 1851, when 
the present Constitution was adopted. Another was held in 1873 
but the Constitution proposed was overwhelmingly defeated and 
no other convention was held until this year. 

The members of the convention were selected on a non-parti¬ 
san ballot. Party lines were not drawn either in the election 
of the members or in the convention after it was in session. The 
membership was thoroughly representative. Some members 
were ripened by years of age and experience and others were 




2 


young, eager, active and full of enthusiasm. The radicals and 
conservatives were each well represented. 

A large number of proposals were submitted, and were care¬ 
fully considered in committees and fully discussed. Amend¬ 
ments were made and there was a genuine endeavor to secure as 
great unanimity as possible to the end that all members might 
support the work of the convention and that its work might meet 
the approval of the electors, and every member but one finally 
signed the certificate showing the action of the convention. 

In the proposals submitted the present progressive tendency 
is apparent, but the safeguards suggested as a result of the ex¬ 
perience of other states with new constitutions appear. The 
work of the convention has been generally approved and com¬ 
mended and so far no outspoken opposition to any proposals has 
appeared, but there has to the present time not been much dis¬ 
cussion, and it may be that opposition may develop as the pro¬ 
posals shall be further examined, discussed and considered. 

The most important proposal to members of this association is 
the proposition introduced by Judge Peck, of Cincinnati, which 
proposes a radical change in our judicial system. 

Others of great importance to the members of this association 
will be submitted, but in this address it will not be possible to 
take up and discuss at length these separately, but many of them 
will undoubtedly be the subject of discussion at this meeting. 
Several relate directly to the administration of justice, and as 
citizens we are interested in the full and frank discussion of 
every one. 

One of the most important of these relating to the adminis¬ 
tration of justice is the first, which permits the General Assem¬ 
bly to pass laws to authorize the rendering of a verdict in civil 
cases by the concurrence of not less than two-thirds of the jury. 
It permits the enactment of a law hereafter and is not self-ex¬ 
ecuting. The number of the jurors required to concur may be 
made more than nine. While this appears to be a radical change 
of the time-honored provision of the jury system, an examination 
discloses similar provisions in the Constitution of other 
states. Some have been in effect for a great many years. Cali¬ 
fornia, Idaho, Minnesota, Montana, Missouri, Nevada, Oregon, 
South Dakota, Utah and Washington are some of the states 
which have similar provisions, some requiring the concurrence 


AU8 ; 



of five-sixths of the jury, and in the state of Minnesota there is 
added the requirement, “after not less than six hours’ delibera¬ 
tion. ’ ’ The purpose is to eliminate the power of the corrupt or 
obstinate juror to obstruct justice. 

The second abolishes capital punishment. The third relates 
to criminal procedure and authorizes the taking of depositions, 
by the accused, or by the state, to be used for or against the ac¬ 
cused, of any witness whose attendance can not be had at the 
trial, always securing to the accused means and the opportunity 
to be present in person, and with counsel, at the taking of the 
depositions, and to examine the witness face to face, as fully and 
in the same manner as if in court. The provision that no person 
shall be compelled, in a criminal case, to be a witness against 
himself is retained, but failure to testify may be considered 
by the court and jury and may be made the subject of comment 
by counsel. 

Another authorizes suits to be brought against the state in 
such courts and in such manner as may be provided by law. 
Heretofore any one having a claim against the state of Ohio was 
dependent upon the good will of the General Assembly to secure 
its payment, and recently in one instance authority was given 
for an action to be instituted directly against the state. There 
is apparently no good reason why the state should not be held 
to answer in civil cases even as an individual. 

A new provision is sought to be added to the Constitution pro¬ 
viding that the amount of damages recoverable by civil action 
in the court for death caused by wrongful act, neglect or default 
of another shall not be limited by law. At the present time a 
statute limits the amount of recovery for damages, but this stat¬ 
ute could at any time be amended, and in fact recently has been 
amended by the General Assembly. 

Initiative and Referendum are provided for in another pro¬ 
posal. The Referendum reserves to the people the power to 
adopt or reject any law, a section of a law, or any item in any law 
appropriating money, passed by the General Assembly, except 
laws providing for tax levies, appropriations for the current 
expenses of the state government and state institutions, and 
emergency laws necessary for the immediate preservation of the 
public peace, health or safety, but these emergency laws must be 
enacted by a two-thirds vote. Initiative allows electors to pro- 


4 


pose laws and constitutional amendments, subject to the require¬ 
ments and restrictions therein set forth. : 

In an address of this kind sufficient time is not given to take 
up and discuss this proposal in detail. It is a subject on which 
there is great interest, and was the subject of a very interesting 
discussion before this association several years ago. 

The members of the constitutional convention defeated the 
proposal for the recall of judges, but passed a proposal provid¬ 
ing for the prompt removal from office, upon complaint and 
hearing, of all officers, including state officers, judges and mem¬ 
bers of the General Assembly, for any misconduct involving 
moral turpitude, or for any other causes provided by law, and 
then expressly provided that this method of removal should be 
in addition to impeachment or other method of removal author¬ 
ized by the Constitution. The demand for the recall of judges 
and other officers arises in part from the fact that the present 
method of impeachment is inefficient to remove public officers, 
and those who oppose the recall of judges do not oppose a pro¬ 
vision of this kind. No one should be elected to office or allowed 
to remain in office, who has been guilty of moral turpitude. 
There should be means for prompt removal after complaint and 
hearing. 

Another provides that laws may be passed prescribing rules 
and regulations for the conduct of cases and business in the courts 
of the state; regulates proceedings in contempt and limits the 
power to punish for misconduct, and that no order of injunction 
shall issue in any controversy involving the employment of labor, 
except to preserve physical property from injury or destruction, 
and that all persons charged in contempt proceedings with the 
violation of an injunction issued in such controversy shall, upon 
demand, be granted a trial by jury, as in civil cases. 

Another proposal of great interest to members of the legal 
profession gives authority to provide compensation to workmen 
and their dependents for death, injury or occupational diseases 
occasioned in the course of such workmen’s employment, and 
authorizes the passage of laws to establish a state fund, to be 
created by compulsory contributions thereto by employers and 
administered by the state, to determine the terms and conditions 
upon which payment shall be made therefrom, and to take away 
any and all rights of action or defense from the employe and 


5 


employer and grants wide authority to make effectual a work¬ 
men’s compensation law. This will permit constitutional legisla¬ 
tion of this character to be enacted. The cause of much 
litigation would thereby be eliminated. A great portion of the 
time of our courts and juries is now taken up with litigation for 
damages arising out of injuries, which would in this way be 
taken from the courts. The present workmen’s compensation 
law has not apparently accomplished so much as was expected, 
but under this constitutional provision laws could be enacted that 
would be efficient to accomplish the result desired. 

Other proposals affecting the administration of justice in this 
state authorizes the passing of laws for the regulation of the 
use of expert witnesses and expert testimony in criminal trials 
and proceedings and for the registering and warranting of land 
titles, and the abolition of justices of the peace in certain cities 
which have municipal courts to take the place of justices. 

Of general interest are other proposals providing for investi¬ 
gations by each House of the General Assembly; limiting the 
veto power of the Governor; authorizing the passing of laws to se¬ 
cure to mechanics and material men direct liens upon the property 
upon which they have bestowed their labor or for which they have 
furnished material; granting authority to pass laws to fix and 
regulate the hours of labor; to establish a minimum wage and 
provide for the comfort, health, safety and general welfare of 
employes; authorizing the passing of laws for the conservation 
of natural resources; fixing eight hours as a day’s work for work¬ 
men engaged in any public work carried on or aided by the state, 
or any political subdivision thereof, whether carried on by con¬ 
tract or otherwise; abolishing prison contract labor; limiting 
the power of the General Assembly in extraordinary sessions; 
granting woman’s suffrage; omitting the word ‘‘white” from 
the Constitution; providing for the use of voting machines; re¬ 
quiring all nominations for elective, state, district, county and 
municipal offices to be made at direct primary elections, and 
requiring provisions to be made by law for a preferential vote 
for United States Senator, and requiring delegates to national 
conventions to be elected by direct vote of the electors, and that 
each candidate for delegate shall state his first and second choice 
for the President, which preference shall be printed upon the 
primary ballot below the name of the candidate, but further 


6 


providing that the name of no candidate for the presidency shall 
be so used without his written authority; providing for a re¬ 
organization of our public school system, with a superintendent 
of public instruction to replace the state commissioner of public 
schools; authorizing the state bond limit to be extended to 
$50,000,000, for inter-county wagon roads; authorizing the insur¬ 
ing of public buildings and property in mutual insurance asso¬ 
ciations or companies, and that laws may be passed providing for 
the regulation of all rates charged by any insurance company, 
corporation or association, organized under the laws of this state, 
or doing any insurance business in this state for profit; seeking 
to abolish the board of public works; a law authorizing the tax¬ 
ation of state and municipal bonds, inheritances, incomes, fran¬ 
chises and production of minerals; providing for the regulation 
of corporations and the sale of personal property by them; re¬ 
storing the double liability as against stockholders of state banks, 
and providing for the inspection, examination and regulation of 
all state and private banks; seeking to regulate the state printing. 

Providing that women may be appointed as notaries public or 
as members of boards of, or to positions in those departments 
and institutions established by the state, or any political sub¬ 
division, involving the care of women or children, or both. 
This would not be necessary if women shall be granted woman's 
suffrage, as is provided in another proposal. The question of 
licensing the traffic of intoxicating liquors is the subject of a 
proposal, and it is deemed of such importance that it is to be 
submitted apart from the other proposals, each of which is sep¬ 
arately submitted. 

Another provides that appointments and promotion for the 
civil service of the state, in the several counties and cities shall 
be made according to merit and fitness, to be ascertained as far 
as possible by competitive examination, and that laws shall be 
passed providing for the enforcement of this provision. 

There is also a provision in another that laws may be passed 
regulating and limiting the use of property on or near public 
ways and grounds for erecting bill-boards thereon and the public 
display of posters, pictures and other forms of advertising. 

Another provides for method of submitting amendments to the 
Constitution, and still another for municipal home rule in its 
widest sense. 


7 


These proposals are certainly of great interest to any gather¬ 
ing, and particularly in a gathering of the lawyers of the state 
of Ohio, who are members of the Ohio State Bar Association. 
There would be profit in discussing each and all of these pro¬ 
visions and no body of men could be assembled that would be 
better able to discuss these various provisions than those who are 
here as members of this association. Many of the proposals 
arise out of decisions of our courts holding certain laws hereto¬ 
fore enacted by the General Assembly to be unconstitutional and 
the Constitutional Convention has sought by amending the Con¬ 
stitution to permit the enactment of such laws. On the other 
hand, other proposals provide for radical changes in the legis¬ 
lative policy of the state, and reflect the progressive ideas of the 
people. 

Before the electors of the state shall have an opportunity to 
vote on these various proposals all of these matters will un¬ 
doubtedly be freely discussed and the members of this associa¬ 
tion will be called upon to explain their views and give the peo¬ 
ple the benefit of their advice and counsel as to the wisdom of 
adopting any or all of the proposals. 

In this address it has seemed best, in the limited time given 
me, as president of the association, to confine myself to the pro¬ 
posals as submitted by Judge Peck, of Cincinnati, providing for 
a change in our judicial system, and by James W. Halfhill, of 
Lima, providing for a judge of the court of common pleas in each 
county. 

These two proposals are so related that it will be necessary 
to consider them together, although it is possible for one to be 
adopted and the other to be rejected. At the last session of our 
association a committee was appointed to present certain recom¬ 
mendations of this association to the constitutional convention. 
The committee was fortunate in that one of its members, Judge 
E. B. King, was a member of the constitutional convention and 
in that way in a position to give personal attention to the matter 
at all times. 

The proposal by Mr. Halfhill, also a member of this associa¬ 
tion, was the one proposal that the association, at its last meeting, 
recommended, which was adopted by the constitutional conven¬ 
tion. The proposal by Judge Peck was a much more radical 
proposal than had been theretofore suggested, and was supported 


8 


by the Cincinnati Bar Association, which had a large influence 
in securing the passage of the proposal. 

The proposal for a change in our judicial system provides for 
a Supreme Court, until otherwise provided by law, consisting of 
a chief justice and six judges. It gives the Supreme Court 
original jurisdiction as at present and appellate jurisdiction in 
all cases involving questions arising under the Constitution of 
the United States or of this state, in cases of felony, on leave first 
obtained, and in cases which originated in the court of appeals 
and such revisory jurisdiction of the proceedings of the admin¬ 
istrative officers as may be conferred by law. The judges shall 
be elected for terms of not less than six years, as may be pre¬ 
scribed by law. 

No law shall be held unconstitutional and void by the Supreme 
Court without the concurrence .of at least all but one of the 
judges, except in the affirmative of a judgment of the court of 
appeals declaring a law unconstitutional and void. 

It is a further provision that in cases of public or great gen¬ 
eral interest, the Supreme Court may, within such limitations 
of time as may be prescribed by law, direct any court of appeals 
to certify its record to the Supreme Court and may review and 
affirm, modify or reverse the judgment of the court of appeals, 
and there is an express constitutional provivion that no law shall 
be passed or rule made whereby any person shall be prevented 
from invoking the original jurisdiction of the Supreme Court. 

A court of appeals consisting of three judges in each of the 
present circuits in which circuit courts are now held is created 
and it is provided that the judges of the circuit courts now re¬ 
siding in their respective districts shall be judges of the respective 
courts of appeals in such districts. The court of appeals shall 
hold at least one term annually in each county in the district, 
and such other terms at a county seat in the dictrict as the judges 
may determine upon. 

The same original jurisdiction is given the court of appeals 
as to the circuit court at present, and appellate jurisdiction in 
the trials of chancery cases and jurisdiction to review, affirm, 
modify or reverse the judgments of the court of common pleas, 
superior courts or other courts of record within the district as 
may be provided by law, and it is expressly provided that judg¬ 
ments of the courts of appeals shall be final in all eases except 


9 


cases arising under the Constitution of the United States, or of 
this state, cases of felony, cases of which it has original juris¬ 
diction and cases of public or great general interest, in which the 
Supreme Court may direct any court of appeals to certify its 
record to that court. 

No judgment shall be reversed on the weight of the evidence 
except by the concurrence of all of the judges of the courts of 
appeals and by a majority of the courts of appeals on other 
questions. Authority is given whenever the judges of a court of 
appeals find that a judgment upon which they have agreed is in 
conflict with a judgment pronounced upon the same question by 
any other court of appeals of the state to certify the record of 
the case to the Supreme Court for review and final determina¬ 
tion. 

The Chief Justice of the Supreme Court of the state shall de¬ 
termine the disability or disqualification of any judge of the 
court of appeals, and he may assign any judge of the court of 
appeals, in any county, to hold court. 

These, in the main, are the principal provisions of the pro¬ 
posals introduced by Judge Peck, and the adoption of this pro¬ 
posal will involve a radical change in our judicial system. 

The Halfhill proposal provides for the selection of one resi¬ 
dent judge of the court of common pleas and such additional 
resident judge or judges as may be provided by law in each 
county, abolishing the present districts in which common pleas 
judges are selected; continues the probate court in each county, 
but provides that in any county having less than 60,000 popula¬ 
tion whenever ten per cent, of the electors voting for Governor 
at the preceding election shall petition the judge of the court of 
common pleas to submit the question to the electors of combining 
the probate court with the court of common pleas, if the major¬ 
ity vote is in favor of such combination the courts shall be com¬ 
bined, and be known as the court of common pleas, and grants 
authority to increase or diminish the number of judges of the 
Supreme Court and to increase beyond one or to diminish to one 
the number of judges of the court of common pleas in any county 
and to establish other courts whenever two-thirds of the members 
elected to each House shall concur therein. 

In this connection it is interesting and will be instructive to 
examine the experiences of the state of Ohio with reference to the 



10 


judicial system as it has existed from the beginning down to the 
present time. 

The first Constitution of Ohio, known as the Constitution of 
1802, provided that the judicial power of the state, both as to 
matters of law and equity, be vested in a Supreme Court, in 
courts of common pleas for each county, in justices of the peace, 
and in such other courts as the Legislature might, from time 
to time, establish. 

The Supreme Court originally consisted of three judges, until 
1816, when the membership of the court was increased to four, 
and by the Constitution there could be no more judges of the 
Supreme Court, so this continued to be the number of judges of 
the Supreme Court until after the Constitution of 1851 went into 
effect. The judges were appointed for terms of seven years by 
a joint ballot of both Houses of the General Assembly. Judges 
of the court of common pleas were selected in the same way. 
The Supreme Court had original and appellate jurisdiction, both 
in common law and chancery, in such cases as should be directed 
by law, and held court in different parts of the state and were 
required to hold a session in each county of the state once a year. 

The state was originally divided into three circuits for the 
selection of judges of the court of common pleas, and in each cir¬ 
cuit there was selected a resident judge, and in each county not 
more than three nor less than two associate judges, and three 
judges and the resident judge and associate judge, in their re¬ 
spective counties, any three of whom was a quorum, composed 
the courts of common pleas. The number of circuits was there¬ 
after increased; associate judges were frequently not members 
of the bar. The court of common pleas also had jurisdiction of 
probate and testamentary matters. 

The work of the Supreme Court was very much behind and the 
requirement that court be held in each county was a burdensome 
requirement. These facts together were potent influences for 
calling a new constitutional convention, and later in the adop¬ 
tion of the provisions of the Constitution of 1851. 

By the Constitution of 1851 all judges were made elective, 
and the Supreme Court consisted of five judges and was given 
original jurisdiction in quo warranto, mandamus, habeas corpus 
and procedendo, and such appellate jurisdiction as might be pro¬ 
vided by law. A district court was created which should have 
like original jurisdiction with the Supreme Court, and such ap- 


11 


pellate jurisdiction as might be provided by law. District courts 
were composed of the judges of the court of common pleas in the 
respective districts, and one of the judges of the Supreme Court, 
any three of whom should form a quorum, and the district court 
was required to hold three yearly sessions in not less than three 
places in the district. The court of common pleas was constitu¬ 
ted as at present and the state divided into districts and subdivi¬ 
sions. The probate court was created. 

The work of the Supreme Court was so far behind that at the 
annual October election of 1875 a constitutional amendment was 
adopted providing for a Supreme Court Commission of live mem¬ 
bers, appointed by the Governor to hold office for the term of 
three years from and after the 1st of February, 1876. This 
commission was authorized to dispose of such part of the busi¬ 
ness then on the dockets of the Supreme Court as should, by 
arrangement between the commission and the court, be trans¬ 
ferred to the commission, and the commission was given like 
jurisdiction and power in respect to such business as the Supreme 
Court had. The commission did efficient work and sat for three 
years. In the amendment to the Constitution authorizing the 
creation of the commission was a further provision that the Gen¬ 
eral Assembly, upon application of the Supreme Court, duly 
entered on the journal of the court and certified, might provide 
by law whenever two-thirds of each House should concur therein, 
from time to time, for the appointment in like manner of a like 
commission, with like powers, jurisdiction and duties, provided 
that the term of such commission does not exceed two years, nor 
should it be created oftener than once in ten years. On Febru¬ 
ary 15, 1883, the Supreme Court made application to the General 
Assembly for the appointment of a commission, and an act was 
passed establishing the commission, and April 17, 1883, a second 
commission was appointed and served for a period of two years. 

From the adoption of the new Constitution in 1851 this situa¬ 
tion continued. The old district court never gave general satis¬ 
faction and there was complaint about the delay attendant upon 
the administration of justice, and it seems to me as I have ex¬ 
amined the minutes of the early meetings of the Ohio State Bar 
Association that this situation was one of the main reasons which 
called into existence the Ohio State Bar Association. The earlier 
work of the association had to do with recommending changes in 
our judicial system. 


12 


At the first meeting of the Ohio State Bar Association, held in 
Cleveland, July 9th, 1880, Judge Rufus P. Ranney, the first pres¬ 
ident of the association, a member of the Constitutional Con¬ 
vention of 1851, for years a judge of the Supreme Court and 
one of the best lawyers of the state of Ohio, in speaking in sup¬ 
port of a motion to instruct the committee on Judicial 
Administration and Legal Reform to prepare a plan to facilitate 
the administration of justice in the state said: 

“We undertook the job, in this state of creating too many 
courts, of requiring the process to be too long to go from one 
end to the other of the judicial system. What is wanted in this 
state is that which is adopted in every other state that I know 
of in the Union, and which is an inherent quality of every judi¬ 
cial system, that there shall be competent judges to decide cases 
in the first instance between parties, and other competent judges, 
simply to decide whether the cases have been rightly decided or 
not. When you get more than that, you have got more than the 
demands of justice require; and every addition you make to the 
simplicity of such a system is a clog upon the progress in getting 
through the courts.” 

Judge Ranney then urged the abolishment of the old district 
court, then in existence, and the increase of the number of judges 
of the Supreme Court, and said that in the Constitutional Con¬ 
vention of 1851 he had urged a simple enlargement of the old 
system prior to 1851 by adding to the force of the Supreme Court, 
was all that was required for a speedy and correct administration 
of justice in Ohio. 

The association held an adjourned meeting at Columbus, Ohio, 
in December, 1880, and the committee on Judicial Administration 
and Legal Reform, through its chairman, submitted a plan and a 
resolution; the subject was earnestly discussed and the report of 
the committee was adopted, and the committee was instructed to 
present the report to the Legislature and urge its substantial 
adoption. 

At the session of the association in 1881 the committee reported 
a memorial it had submitted to the General Assembly, and at 
the session of 1882 a plan was submitted which provided for the 
abolishment of district courts and the institution in their stead of 
circuit courts. The members of the State Bar Association were 
active and aided in securing the passage of the Constitutional 
Amendment of 1883, and their further influence in favor of 


13 


this amendment was recognized at the session of the Ohio State 
Bar Association held in 1885, shortly after the creation of the 
circuit court, when General Asa W. Jones, in his address as 
president of the association, said: 

‘‘This association originated the circuit court; caused it to be 
brought into existence and must stand sponsers to the people of 
Ohio for its success.” 

And he further said: 

“The circuit court was originated as a relief to the overbur¬ 
dened docket of the Supreme Court and as a place at which to 
call a halt in a great volume of litigation; but it can only suc¬ 
ceed in fulfilling the mission by carefully, fully and patiently 
considering the matters brought before it and ably and correctly 
determining the right of parties litigant. If it does less than 
this it becomes, like the defunct district court, a mere gateway 
or half-way house on the journey to the court of the last resort.” 

The Constitution Amendment of 1883 did not change the jur¬ 
isdiction of the Supreme Court but it authorized an increase in 
the number of the judges and provided that whenever the number 
of judges should be increased, the General Assembly might 
authorize the court to organize a division thereof, not exceeding 
three, each division to consist of an equal number of judges. 

The General Assembly has never increased the number of 
judges so that it was not practicable to have three divisions. 
The circuit court was created with the jurisdiction it has at 
present. 

In the calendar of the Supreme Court for the January term 
of 1912 appears a table showing cases filed and disposed of each 
year from 1852 to January 1, 1912. There were pending on the 
general docket for the January term of 1911, at the opening of 
the term 762 causes. During the year 1911, 500 new cases were 
filed on the general docket and during that year 564 were disposed 
of, so that on January 1, 1912, the calendar contained 699 cases. 
In a letter from Supreme Court Clerk Frank E. McKean, dated 
June 19th, 1912, responding to my inquiry, he says that there 
were on that date pending in the Supreme Court 691 cases, and 
that cases in their regular order, submitted without oral argu¬ 
ment, are heard in from twelve to sixteen months from the date 
of filing by the full court, and that it is not customary to submit 
that class of cases to a division of the court. 

The clerk further states that cases in which oral argument is 


14 


had are reached in from fourteen to sixteen months when assigned 
to a division of the court, but that when oral argument is had to 
the full court cases are reached in from twenty to twenty-four 
months. 

The clerk further states in this letter that during the last three 
or four years the court has not been gaining in its work, nor has 
it been falling behind, but he directs attention to the table given 
in the court calendar as showing that the work of the court has 
greatly increased in recent years. 

It was the evident purpose of the members of the Constitutional 
Convention to endeavor to relieve the Supreme Court. The plan 
suggested by Judge Ranney and approved by Judge Burrows in 
his address as president two years ago, was considered, but in 
working out a plan for the relief of the Supreme Court the mem¬ 
bers of the Constitutional Convention have endeavored to follow 
the plan that was adopted years ago, at the time the United 
States Circuit Court of Appeals was created to relieve the Su¬ 
preme Court of the United States. 

At that time there were those who believed that litigants would 
never be satisfied unless their cases were finally submitted to the 
Supreme Court of the United States, and that no work would be 
left for the Supreme Court of the United States to do, but the 
change in the federal court system has been generally satisfactory 
and the Supreme Court of the United States has found plenty 
of work to do without hearing every controversy that is now 
disposed of by the circuit court of appeals, and it is now appar¬ 
ent that if the circuit court of appeals had not been created and 
given final jurisdiction that the Supreme Court of the United 
States would now have been so hopelessly behind in its work that 
it would have been useless to have taken cases to that court, ever 
expecting to have them disposed of within any reasonable time. 

The result of the adoption of the proposal by Judge Peck will 
be to reform the judicial system of Ohio; to limit the work of the 
Supreme Court and to dignify and increase the importance of the 
court of appeals. The delay now resulting from taking cases to 
the Supreme Court will be eliminated and it will be possible for 
litigation to be finally disposed of in from eighteen months to 
two years sooner than heretofore. The circuit court will no 
longer be a mere passage-way to the Supreme Court, as the court 
of appeals will have a finality of jurisdiction that will clothe it 
with authority and give it greater importance. The new judicial 


15 


system complies with the fundamental rule that each suitor is en¬ 
titled to one trial and one appeal. 

The state of Ohio since the organization of the circuit court 
has been fortunate in the selection of judges of that court. Many 
have been promoted to the Supreme Court, and others who have 
not aspired to that court have made excellent records, so that the 
circuit courts have the general confidence of the people. 

The revisory power of the Supreme Court will be retained so 
as to require uniformity in all the courts of appeal and to con¬ 
sider cases of public or great general interest. The constitutional 
convention has preserved the right to have an appeal in equity 
cases and practically to permit two trials. As first adopted this 
was not so provided. One trial is sufficient with one appeal. This 
is not serious as many of the circuit courts at present have adopt¬ 
ed a rule requiring the testimony taken in the court of common 
pleas to be written out and then to hear the case befor the cir¬ 
cuit court on the record, with such additional testimony as the 
circuit court might receive. This rule should be generally adopt¬ 
ed. It provides for taking the testimony before a court, and for 
a review of the entire case on law and evidence. 

More power should be given to the courts to assist the juries 
in reaching a conclusion of the matter before the court and jury. 
Courts should be allowed to comment on the facts. The federal 
practice could well be followed in this way, and when we are 
adopting some of the provisions of the federal court it would be 
well to adopt others to the end that justice may be obtained 
promptly, as that is the sole end of all litigation. 

Justice Gray, of the Supreme Court of the United States, said: 

“Trial by jury is a trial presided over by a judge with author¬ 
ity not only to rule upon objection to evidence and to instruct 
the jury upon the law, but also when in his judgment the due 
administration of justice requires it to aid the jury by explaining 
and commenting upon, and even giving them his opinion upon 
questions of fact, provided only he submit these questions to their 
determination.” 

In the Peck proposal there is a provision that the Chief Jus¬ 
tice of the Supreme Court of the state may assign any judge of 
the court of appeals to any county to hold court, and in the 
Halfhill proposal there is a provision giving similar authority 
with reference to the judges of the court of common pleas. 
When these proposals shall be adopted there will be, for the 


16 

first time, a single authority having power to assign judges to 
any jurisdiction in the state. There should be such a number of 
judges of the courts of common pleas that a cause could be tried 
within six months after it was at issue, if it was desired, and the 
work of the court of appeals should be so arranged that cases 
could be tried within three months from the time filed in that 
court. By reason of the centralizing of the authority in the chief 
justice the work of the courts can be supervised, and when any 
court shall be unable to take care of the cases and keep up the 
docket it will be possible to assign judges from jurisdictions in 
the state where there is not sufficient work, and in this way to 
afford temporary relief to the various jurisdictions, and the 
recommendation of the chief justice would have a large influence 
in securing the enactment of legislation to provide for additional 
judges whenever needed. 

In view of the requirement that cases can not be reversed be¬ 
cause a verdict is against the weight of the evidence, except by 
the concurrence of all the judges of the courts of appeal, final 
judgment should generally be rendered and the cases disposed of. 

The courts should be liberal in the trial of cases and should 
endeavor to ascertain the facts, as a law suit is a judicial investi¬ 
gation and not a contest between the attorneys. When the 
evidence has been given in open court and the record made and 
the facts found, the court should determine the law applicable 
thereto. If a suitor is not satisfied with the judgment of the 
court of common pleas it should be easy and inexpensive to se¬ 
cure a review and final determination of the cause. Complete 
transcript of the testimony should not be required unless it is 
essential to present the issue to the court of appeals. 

There is much to commend in the present practice of bank¬ 
ruptcy courts reviewing cases from referee where the question to 
be reviewed is certified to the district court. 

If the provision permitting less than twelve jurors to render a 
judgment shall be adopted there would be another reason why 
the scintilla rule should be abolished. Courts should not be re¬ 
quired to submit cases to jurors where a judgment would not 
be allowed to stand if rendered. 

The members of the Ohio State Bar Association should urge 
the adoption of the proposal by Judge Peck and the Halfhill pro¬ 
posal to the end that the present just criticism against delay in 
our courts may be removed. 


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